The Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2010

Made: 24th February 2010

Laid before the Scottish Parliament: 25th February 2010

Coming into force: 23rd March 2010

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections33(2)(a), (3)(a), (b), (c), (d) and(f) and 36(1) and(2)(a) of the Legal Aid (Scotland) Act 1986[^f00001] and all other powers enabling them to do so.

Citation, commencement and interpretation

1

• (1) These Regulations may be cited as the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2010 and come into force on 23rd March 2010.

• (2) In these Regulations “the 1989 Regulations” means the Criminal Legal Aid (Scotland) (Fees) Regulations 1989[^f00002].

Application

2

• (1) Subject to paragraph (2) and to regulation 3, these Regulations apply only in relation to proceedings commenced on or after 23rd March 2010.

• (2) If the counsel involved so requests, in determining the fees chargeable in respect of proceedings commenced on or after 2nd October 2006 and before 23rd March 2010 the 1989 Regulations are to be read and have effect as if amended in accordance with regulation 4.

Amendment of the 1989 Regulations for the period from 4th April 2005 to 2nd October 2006

3

For the period from 4th April 2005 to 2nd October 2006 paragraph 10(d) of Schedule 2 (notes on the operation of Schedule2) to the 1989 Regulations is amended as follows:-

• (a) after “two thirds of” insert “either (i)”; and

• (b) at the end add—

or; (ii) such higher figure as was allowed by the Board, or as the case may be the auditor, up to the maximum fee prescribed in Chapter 3 of Part II of the Table of Fees in this Schedule.

Amendment of the 1989 Regulations

4

• (1) Schedule2 to the 1989 Regulations is amended as follows.

• (2) In the notes on the operation of Schedule2—

• (a) in paragraph1 for “fees shall be calculated” substitute “fees including those within a range of fees, shall be determined or calculated”;

• (b) in paragraph3—

• (i) in subparagraph(b) for “counsel shall only be allowed the fees” substitute “counsel’s fees shall be allowable as”;

• (ii) in subparagraph(e) after the words “junior counsel” where they first appear insert “or for more than onejunior counsel” and at the end insert “or more than onejunior counsel”;

• (iii) in subparagraph(f), at the beginning insert “except on cause shown,”;

• (c) for paragraphs4 to11 substitute the text in Schedule1 to these Regulations;

• (d) in paragraph17—

• (i) in subparagraph(i) after “paragraph3” insert “(a) or(b)”;

• (ii) after subparagraph (i) insert—

; and (j) in the same circumstances as those described at paragraph (i) above, but where the category of charge falls under paragraph3(c) of Chapter 1 or 2 of Part I, the fee payable shall be that prescribed in paragraph4(a) of Chapter 1 or 2 of PartI.

• (e) in paragraph 17A for “(u)” substitute “(t)”;

• (f) in paragraph20 after “Chapters1 and 2 of Part1” insert “, paragraph9 of Chapters1 and2 of PartII”;

• (g) in paragraph 21 after “Chapters 1 and 2 of Part 1” insert “, paragraph 10 of Chapters 1 and 2 of Part II”.

• (3) In Part1 of the Table of Fees (fees of counsel for proceedings in the High Court of Justiciary)—

• (a) in Chapter1 (junior counsel)—

• (i) after paragraph1B (a), insert—

• (ii) in paragraph4(j)(iii), for “£455 £395 £275” substitute “£495£430£305” respectively;

• (b) in Chapter2 (senior counsel)—

• (i) after paragraph1B (a), insert—

• (ii) in paragraph4(j)(iii) for “£515” substitute “£560”.

• (4) In PartII of the Table of Fees (fees of counsel in appeal proceedings)—

• (a) for Chapters1 and2 substitute the text in Schedule2 to these Regulations; and

• (b) delete Chapter3.

• (5) In PartIII of the Table of Fees (fees of counsel for proceedings in the sheriff and district court), in Chapter1 (junior counsel), paragraph3(j)(ii), for the fee “£300” substitute “£305”.

SCHEDULE 1 — FEES OF COUNSEL

Appeals in the High Court of Justiciary

SCHEDULE 2 — FEES OF COUNSEL IN APPEAL PROCEEDINGS

Signed

KENNY MACASKILL — A member of the Scottish Executive — 24th February 2010

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations amend Schedule2 to the Criminal Legal Aid (Scotland) (Fees) Regulations 1989 (“the 1989 Regulations”).

Regulation 2 provides for counsel to have the choice of whether to apply the amendments in these Regulations to the 1989 Regulations to fees they charge for work in relation to proceedings commenced between 2nd October 2006 and the coming into force date of these Regulations. This election must be for all work done after that date on a particular case.

Regulation 3 amends the 1989 Regulations for the period from 4th April 2005 to 2nd October 2006 to provide that where an additional fee is payable in exceptional cases involving extraordinary preparation the fee is to be calculated by reference to the main fee payable, rather than by reference to the minimum main fee payable.

Regulation 4(2), (4) and Schedules1 and 2 amend fees of counsel in criminal appeals by:—

• substituting a new PartII in Schedule2 to the 1989 Regulations which, in particular, introduces ranges of fees for certain hearings and written work;

• amending and substituting parts of the “Notes on the operation of Schedule2” to reflect the changes in the new PartII and, in particular, setting out the circumstances in which a higher fee within a range of fees shall be payable and when an additional fee may be claimed; and

• making certain other minor amendments.

Regulation 4(3) amend fees of counsel in the High Court of Justiciary by:—

• inserting a new category of fee for hearings in which witnesses are called to give evidence following the adjournment or continuation of the preliminary hearing;

• uprating fees for certain confiscation diets.

Regulation 4(5) amends a fee for counsel for a particular confiscation diet in the sheriff or district court.

Footnotes

[^f00001]: 1986 c.47. Sections33 and36 were amended for purposes not relevant to these Regulations. The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section53 of the Scotland Act 1998 (c.46).

[^f00002]: S.I. 1989/1491, as relevantly amended by S.S.I. 2005/656 and S.S.I. 2007/180; Regulation8 of S.S.I. 2005/656 saves the effect of S.S.I. 2005/113 and S.S.I. 2005/584 in respect of proceedings which commenced before 4thApril 2005 where counsel would be entitled to a higher fee for work done in respect of those proceedings under the Table of Fees in Schedule2 as amended by those Regulations than counsel would be entitled to had those Regulations not been made.